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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA06-1394


Filed: 19 June 2007

v .                         Haywood County
                            Nos. 06 CRS 1007-1008, 1440

    Appeal by defendant-appellant from judgments entered 8 June 2006 by Judge Zoro J. Guice Jr. in Haywood County Superior Court. Heard in the Court of Appeals 4 June 2007.

    Attorney General Roy Cooper, by Assistant Attorney General Hilda Burnett-Baker, for the State.

    Appellate Defender Staples Hughes, by Assistant Appellate Defender Emily H. Davis, for defendant-appellant.

    MARTIN, Chief Judge

    Defendant was charged in two true bills of indictment with felonious breaking or entering, two counts of felonious larceny, and two counts of possession of stolen property. He was also charged with having attained the status of an habitual felon. A jury found him guilty of all of the charges. The trial court arrested judgment as to the two convictions of possession of stolen property and sentenced him to three consecutive terms of imprisonment of 168 months to 211 months for felony breaking or entering (06 CRS 1007), 168 to 211 months for one count of felony larceny (06 CRS 1007), and 168 to 211 months for the other count of felony larceny (06 CRS 1008). Defendant appeals.
    The evidence before the trial court tended to show that atapproximately 1:00 a.m on the morning of 15 July 2005, Officers Craig Shiba and Brad Miller of the Waynesville Police Department and Deputy Norman of the Haywood County Sheriff's Department responded to a call reporting that “there appeared to be two people inside the Abundant Life Assembly of God.” Officers Shiba and Miller approached the building, and saw defendant walking away from the church carrying various items. He was arrested, and various items including shampoo, Clorox cleanup, canned goods, and miscellaneous kitchen supplies were recovered from a nearby trash bag.
    After arresting defendant, Officers Shiba and Miller searched the area for the reported second suspect, while Deputy Norman remained with defendant in the church parking lot. Sergeant Keith Moore arrived in the parking lot shortly thereafter, and read defendant his Miranda rights. No other persons were discovered in the vicinity of the church.
    Officer Shiba testified that he questioned defendant after completing his search. He stated that defendant smelled like alcohol and his speech was slurred. Shiba testified that it was his opinion that defendant “had consumed a sufficient amount of an impairing substance to appreciably impair his mental and/or physical faculties.” After questioning defendant, Officer Shiba located the church pastor, Paul Hensley, who identified the items in the trash bag as having come from inside the church. He estimated the combined value of the items as between three and four hundred dollars. Mr. Hensley also noted that his two guitars, eachvalued at approximately six hundred dollars, were missing. The guitars were not recovered at that time.
    After the other officers left the area with defendant, Sergeant Moore canvassed the neighborhood. He located a man and woman across the street from the church, and recognized the man as Junior Forney, an individual Sergeant Moore had arrested on prior occasions for breaking and entering, and who had just been released from prison. Mr. Forney admitted to calling the police about the intruders in the church. At trial, Sergeant Moore conceded that there was no account of Mr. Forney or his statements to the police in the case's court file.
    Two days after defendant's arrest, Sam Smith, a volunteer at Hazelwood Presbyterian Church who drove defendant to his home, went to defendant's trailer to close its windows. At defendant's landlord's request, Mr. Smith also searched the premises for the two missing guitars. He found two guitars corresponding to the description given by the pastor, and reported his discovery to Officer Miller. Based on his statement, Officers Miller and Moore obtained a search warrant, and recovered the guitars from the trailer. The warrant was introduced into evidence at the trial over defendant's objection.

     Defendant first argues that the trial court erred by entering judgment against him for larceny as alleged in Count II of the indictment in 06 CRS 1007. Defendant alleges that the indictment was fatally defective in that it failed to allege as victim of thelarceny a natural person or legal entity capable of owning property, thereby depriving the trial court of jurisdiction over the offense. We agree.
    “To be sufficient, an indictment for larceny must allege the owner or person in lawful possession of the stolen property.” State v. Downing, 313 N.C. 164, 166, 326 S.E.2d 256, 258 (1985). If the entity named in the indictment is not a person, it must be alleged “that the victim was a legal entity capable of owning property[.]” State v. Woody, 132 N.C. App. 788, 790, 513 S.E.2d 801, 803 (1999). “An indictment that insufficiently alleges the identity of the victim is fatally defective and cannot support conviction of either a misdemeanor or a felony.” Id.
    In this case, the indictment identified “Abundant Life Assembly of God of Waynesville” as the victim of the larceny, without alleging that such victim was a natural person or a legal entity capable of owning property. Against an identical factual background, this Court has held that the failure to include the required allegation of ownership deprives the trial court of jurisdiction, and necessitates the reversal of the conviction. See State v. Cathey, 162 N.C. App. 350, 352-53, 590 S.E.2d 408, 410 (2004)(reversing a conviction for larceny since the indictment did not specify that the victim, the “Faith Temple Church of God” was a legal entity capable of owning property). The State concedes that Cathey is controlling, but argues, for preservation purposes, that we should subject such defects in the indictments to harmless error review. However, it is axiomatic that one panel of the Courtof Appeals may not overrule another panel. In re Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 36 (1989). Therefore, we are bound by Cathey, and the conviction in Count II of 06 CRS 1007 must be vacated.
    Next, defendant argues the trial court erred in denying his motion to dismiss and entering judgment against him for two counts of larceny, the items in the white garbage bag (06 CRS 1007) and the two guitars (06 CRS 1008) when the evidence showed that the two charges arose from the same transaction. We address this together with defendant's fourth argument that the trial court committed plain error in giving a single pattern larceny instruction when it submitted two counts of larceny to the jury. Since we have already vacated defendant's conviction of larceny in Count II of 06 CRS 1007, defendant's arguments in this regard are moot and we do not address them.
    Finally, defendant argues that the trial court erred in denying his motions to dismiss and subsequently entering judgment against him for breaking and entering because the State failed to produce any evidence that he entered the church without consent.
    “When a defendant moves for dismissal, the trial court is to determine whether there is substantial evidence (a) of each essential element of the offense charged, or of a lesser offense included therein, and (b) of defendant's being the perpetrator of the offense. If so, the motion to dismiss is properly denied.” State v. Bellamy, 172 N.C. App. 649, 656, 617 S.E.2d 81, 87 (2005) (quoting State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649,651-52 (1982)). “Substantial evidence is relevant evidences that a reasonable mind might accept as adequate to support a conclusion.” State v. Vick, 341 N.C. 569, 583-84, 461 S.E.2d 655, 663 (1995). In ruling on a motion to dismiss, the court must view the evidence in a light most favorable to the State. State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992).
    “The essential elements of felonious breaking or entering are (1) the breaking or entering (2) of any building (3) with the intent to commit any felony or larceny therein.” State v. Thomas, 153 N.C. App. 326, 334, 570 S.E.2d 142, 146 (2002) (citation omitted). An intent to commit larceny at the time of the breaking or entering may be inferred from the defendant's conduct and other circumstances shown by the evidence. State v. Costigan, 51 N.C. App. 442, 276 S.E.2d 467 (1981). Defendant argues that our Supreme Court's decision in State v. Boone, 297 N.C. 652, 659, 256 S.E.2d 683, 687 (1979) also requires that the State prove that defendant entered without permission.     
    Our Supreme Court has ruled that evidence that defendant entered a building without permission of its occupants is sufficient to prove lack to consent. State v. Sweezy, 291 N.C. 366, 383-84, 230 S.E.2d 524, 535 (1976). In this case, the Reverend Hensley testified that (a) defendant was not a member of the church, that (b) he had items removed from the church in his possession, and (c) a screen had been cut open to permit access to the church, apparently on the morning of 15 July 2005. Taken together, these facts constitute evidence of lack of consent. TheState may rely on circumstantial evidence to prove its prima facie case, as “[t]he law makes no distinction between the weight to be given to either direct or circumstantial evidence.” State v. Salters, 137 N.C. App. 553, 557, 528 S.E.2d 386, 390, disc. review denied, 352 N.C. 361, 544 S.E.2d 556 (2000) (quoting State v. Sluka, 107 N.C. App. 200, 204, 419 S.E.2d 200, 203 (1992)). Therefore, this argument is dismissed.
    We find no error in defendant's convictions of breaking and entering as alleged in Count I of 06 CRS 1007, larceny as alleged in Count I of 06 CRS 1008, or having attained habitual felon status with respect to those convictions. We vacate his conviction for larceny with respect to the judgment entered as to Count II of 06 CRS 1007.    
    No error in part, vacated in part.
Judges TYSON and McCULLOUGH concur.
    Report per 30(e).

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